2102559 (Refugee) - [2021] AATA 3168

2102559 (Refugee) [2021] AATA 3168 (25 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2102559
COUNTRY OF REFERENCE:                   South Sudan
MEMBER:Penelope Hunter
DATE:25 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 25 May 2021 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – South Sudan – imputed political opinion – supporter of President Kiir and Sudan People’s Liberation Movement (SPLM) – race – Dinka – left country of reference when an infant – limited language skills – limited knowledge of tribal or cultural heritage – lack of familial assistance – limited work experience – lack of accommodation – East African Community (EAC) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 28, 29, 36, 65, 67, 68, 91P, 91R, 116, 499, 501
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
FCS17 v MHA [2020] FCAFC 68
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Suntharajah v MIMA [2001] FCA 1391
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 March 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be stateless, applied for the visa on 19 January 2021. The delegate refused to grant the visa on the basis that the applicant was not found to be a person in respect of whom Australia had protection obligations.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2102559 (Refugee)

Details

AGLC: 2102559 (Refugee) [2021] AATA 3168
Case: [2021] AATA 3168
Decision Date: 25 May 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a man born in Khartoum, Sudan, who arrived in Australia as an infant. The applicant claimed to be stateless, arguing he did not meet the requirements for South Sudanese citizenship due to his parents' nationality, his lack of residency, and the absence of a proper registration system in South Sudan. He also claimed he would face harm if returned to Sudan, citing a lack of peace, potential mistreatment, death, and the inability of authorities to protect him due to corruption. The applicant's visa had previously been cancelled on character grounds.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether he had substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sudan, there was a real risk that he would suffer significant harm. This involved assessing his claims of statelessness and the potential dangers he might face upon return. The court also had to consider the relevant country information regarding the safety and conditions in South Sudan.

The court considered the applicant's claims of statelessness in light of the Sudanese Nationality Act 1994 and its amendments, noting that nationality is determined by the law of the country in question. It was noted that the applicant's parents were recorded as being born in Aweil State, now part of South Sudan. The court also had regard to Ministerial Direction No. 84, which mandates consideration of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines', as well as country information assessments. The court found that the applicant's claims regarding his nationality and the risks he faced upon return to Sudan were not adequately addressed.

The court remitted the decision to the Administrative Appeals Tribunal for reconsideration, finding that the Tribunal had not properly assessed the applicant's claims regarding his nationality and the risk of significant harm. The Tribunal was directed to undertake a fresh assessment of the evidence and the applicant's claims.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In addition to the above the Tribunal has before it the following further documents submitted on behalf of the applicant:·UNHCR Position on Returns to South Sudan – Update II, UNHCR April 2019·Conflict, floods and COVID-19 push South Sudanese into extreme hunger, UN News 18 December 2020·Violence in South Sudan engulfs country, 10 years after independence ‘children all have guns’, UN News 19 February 2021·South Sudan Events of 2020, Human Rights Watch ·Humanitarian Needs Overview – South Sudan, Humanitarian Programme Cycle 2021, issued January 2021·Letter of support by [Ms A] dated 22 January 2021·Extract of Chapter III, The Nationality Act 2011 South Sudan. ·Minister for Immigration Multicultural and Indigenous Affairs v QAAF of 2004 [2006] HCA 53.·COI Query, European Asylum Support Office dated 9 April 2020, Acquisition of citizenship in South Sudan: whether a person who has ever had a national South Sudanese ID and has never been registered as a national would be eligible for it. CONSIDERATION OF CLAIMS AND EVIDENCENationality The applicant claims to be stateless. In submissions to the Tribunal received on 27 April 2021, the representative for the applicant has disputed the Departmental assessment that the applicant was to be assessed as South Sudanese due to the following:·Both of the applicant’s parents are not citizens of South Sudan and do not claim as such, for this reason the applicant would not meet any requirement for citizenship by birth.·The reason that the applicant’s parents claimed to hail from Aweil State is not known, this may have been part of the process of getting the application completed for travel to Australia.·The applicant does not meet the 10 year residency requirement for South Sudanese citizenship.·No application for citizenship has been made by the applicant for Sudan or South Sudan and there will never be an application made.·There is no information that any application for citizenship of South Sudan would be successful in any event. It is argued that there is a lack of any proper population registration system in South Sudan Section 91N(6) of the Act requires that nationality be determined solely by reference to law of that country. The applicant was born in Khartoum, Sudan in [year]. He left Sudan with his family while an infant and spent several years in [Country 1] prior to arriving in Australia as a dependant on his father’s Refugee (Subclass 200) visa. By way of identity documents the applicant has produced an untranslated copy of his family book and birth certificate. There is no evidence before the Tribunal or the Department that these documents are bogus or that the applicant has given a false identity. The applicant claims to have never obtained a passport of any country. At the time of his birth the applicant’s nationality was governed by the Sudanese Nationality Act 1994. After approximately two decades of civil war, South Sudan became independent in 2011. Consequently, the Sudanese Nationality Act 1994 was amended in 2011 and further in 2018. According to the Sudanese Nationality Act 1994, the applicant can acquire Sudanese nationality through his paternal or maternal line. The visa application under which the applicant and his family were granted their Refugee (Subclass 200) visa, produced by the Department, records that both the applicant’s mother and father were born in Aweil State , which is now in South Sudan. A 2011 amendment to the Sudanese Nationality Act 1994, stipulates that Sudanese people automatically lose citizenship when they acquire ‘de jure or de facto” the nationality of South Sudan[1]. [1] The Sudanese Nationality Act 1994', Citizenship Rights in Africa Initiative, 2018 amendments signed into law 30 December 2018, s.10(2) page 14,

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND INFORMATION BEFORE THE TRIBUNAL The applicant is a [age]-year-old man born in [year] in Khartoum, Sudan. He left Sudan with his family while an infant and travelled to [Country 1]. While in [Country 1] the family were designated by the United Nations High Commissioner for Refugees (UNHCR) as refugees and [in] September 2005 he arrived in Australia with his family on a Class XB Subclass 200 humanitarian visa. In his visa application form he set out that his ethnicity is African/Australian and that his religion is Christianity. He reads, writes and speaks English, and also speaks Arabic. He is engaged to an Australian citizen and has been in a relationship with his fiancée since 5 May 2017. He attended high school until the age of 17. The applicant was charged with three offences in Australia in 2018, and sentenced to a term of imprisonment. The Tribunal has not itemised the offences and sentences as they are not material to the assessment of the refugee and complementary protection criteria. On 25 October 2018 the applicant’s visa was cancelled under s.501 of the Act, on character and related grounds. On 19 January 2021, the applicant lodged the protection visa application under review. The application form disclosed at that time he was being held in detention, at [Detention Centre 1]. In his application the applicant referred to the letter from his lawyer and set out the following claims:i.He had left Sudan because it was unsafe and there was no peace.ii.He was unaware of the consequences of returning to Sudan.iii.He thought he would be harmed or mistreated and suffer death if he returned to Sudan.iv.He did not think the authorities in the country could protect him due to corruption. v.He would not be able to relocate because he had no family or friends.